Volume 167 Number 1
test, and abnormal biophysical profile? The data also fail to indicate how often and under what circumstances an abnormal test result was ignored and the pregnancy allowed to continue for an extended period. The statement of Pircon et al. that antepartum testing in diabetic patients with hypertension should be started at viability is apparently based on the two late secondtrimester stillbirths that occurred during the study period. Pircon et al. acknowledge that both fetuses had true knots in the umbilical cords; these knots could have had a role in their deaths. Are there data demonstrating that diabetic patients with hypertension are at increased risk of umbilical cord knotting resulting in stillbirths? The question of when to begin fetal testing in patients with hypertension is extremely important. A retrospective analysis could be quite informative. We believe that the data presented by Pircon et al. should be reanalyzed, taking into account the number of tests performed at any given gestational age, with a more complete data presentation. Then justifiable conclusions could be drawn as to when antepartum testing should be initiated in the patient with hypertension. Avick C. Mitra, MD, and William N.? Herbert, MD Division of Maternal-Fetal Medicine, Department of Obstetrics and Gynecology, University of North Carolina School of Medicine, CB# 7570, Chapel Hill, NC 27599-7570
Reply To the Editors: We thank Mitra and Herbert for their interest in our study of antepartum testing in patients with hypertension. The answers to their questions can be found in the text of our original publication; however, we are happy to review the results again. Our objectives were to evaluate when fetal compromise occurs in this patient population and to make recommendations as to when to initiate antepartum testing. Contrary to the suggestion of Mitra and Herbert, the data were not analyzed as a percentage of abnormal antepartum tests per number of patients. We were not interested in the age-old issue of sensitivity or specificity of a testing method in patients with hypertension; rather, we were interested in when compromise occurs. We defined compromise by several parameters, one of which was a positive contraction stress test. Test results were recorded prospectively and were retrospectively queried by first positive test, not by the number of positive tests the patients had. In evaluating the data in this fashion we found that hypertensive patients with concomitant diagnoses of diabetes demonstrated compromise at an earlier gestational age when compared with hypertensive patients without diabetes. Subsequent management was not the topic of study. When patient management is modified because of an antepartum test, there is evidence of fetal compromise. To reiterate, we were interested in when this occurred. We all agree that follow-up of an abnormal test can be managed numerous ways. Although it seems that Mitra and Herbert have expressed an interest in our management protocol, that protocol would not affect our
Letters
295
results or our conclusions in this study. Consequently we do not believe it is appropriate to review that topic here. We recommended that testing in the diabetic patient with hypertension start at viability. As listed in our original publication, this was based on two observations. First, there were two patients with late second-trimester stillbirths and concomitant diagnoses of a true knot in the umbilical cord. It is difficult to attribute the losses solely to the knots in the cords because this is a common finding at the deliveries of normal, viable term infants. We did not suggest that there is an increased risk of cord knotting in diabetic patients with hypertension. Second, a clinician would prefer to initiate testing in a patient before fetal compromise. The earliest gestational age that intervention was necessary in the diabetic patient with hypertension was 28 weeks. Therefore testing would need to start at 26 to 27 weeks or near the time of viability. Richard Pircon, MD St. joseph's Medical Center, 5000 W. Chambers St., Milwaukee, WI 53210
Roger Freeman, MD Memorial Women's Hospital, 2801 Atlantic Ave., Long Beach, CA 90801
Legal thoughts on malpractice claims: Causes and prevention
To the Editors: As a professor of consumer law married to a physician, I read with great interest Ward's article (Ward CJ. Analysis of 500 obstetric and gynecologic malpractice claims: causes and prevention 1991; 165:298-306). I believe the article would have been improved and Kirkley'S comments muted by a change in the classification method. Ward divides the cases into "defensible" and "indefensible," and Kirkley has a number of problems with this categorization. So do I, but for a different reason. There is simply no division in the law which corresponds to the defensible-indefensible dichotomy. The law divides cases into three categories, not two. In the first the plaintiff has no case and the defendant wins on summary judgment. In the second the defendant has no case and the plaintiff wins on summary judgment. In the third the issue is presented to the jury for determination of the disputed facts. Given Ward's description of his method it would appear that most, though not all, of his indefensible cases fall into the second category, where the plaintiff might win on summary judgment. The defensible cases would be in the other two categories. However, even if a case can be made for a physician'S actions, it does not mean that the physician will win. Ward's article may give physicians the unwarranted belief that if they lose a "defensible" case, the system has somehow failed them presumably because of perjured expert testimony, idiot jurors, and corrupt lawyers. This is simply not the law, just as it is not the law that a bad outcome means that there was malpractice. The legal system recognizes that there are often factual disputes on which reasonable people can differ and
296
Letters
assigns the resolution of such disputes to juries. The burden of proof is only the preponderance of the evidence that the physician violated the appropriate standard of care. In a standard of preponderance of the evidence we accept that there will be a certain number of "incorrect" verdicts and that verdicts do not establish truth but only solve the operative question of who wins the case. This type of error is inherent in the legal system. Including this understanding in the method used in the research would make the conclusions of much greater practical use. I do not mean this comment to imply criticism of the obvious effort and skill Ward brought to this difficult issue and the real value of his advice to physicians (I assume the statement that human papilloma virus is "not" a likely cause of cervical cancer is a typographical error). However, I have a few replies to the comments of the other discussants. Kirkley confuses the "standard of care" required by the law with the practice patterns of the "20,000 to 30,000 members of the American College of Obstetricians and Gynecologists who actually establish the standard of care in their localities." The standard of care is not how the typical physician practices any more than it is how the typical driver drives. The typical driver is negligent some of the time. Good drivers and good physicians sometimes make mistakes, with terrible consequences. The standard of care is an abstract ideal, and it is possible for an entire profession or industry to fall below a standard of care at least some of the time. I am surprised that Kirkley's admonitions against changing medical records are seemingly based on the probability of being caught rather than the fact that changing records is a disgraceful, unethical act by anyone who claims to be a physician. I also question his statement that you "never tell a patient that you did wrong." Physicians owe patients a fiduciary duty to disclose errors. Failure to comply with this duty is itself actionable, and more practically may extend the statute of limitations under a theory of fraudulent concealment. As a professor I was appalled that Blanchard would try to use a department chair to "take a stand" against an expert testifying in litigation. Virtually all states have civil or criminal penalties for those who tamper with witnesses in civil litigation, and any decent university respects the academic freedom of its professors. Ward's article is a useful addition to the medical-legal literature. I only add that the real goal is not to avoid liability, but to avoid the i~ury that leads to the claim of liability. Vincent Brannigan University of Maryland, College Park, MD 20742
Reply To the Editors: I appreciate Brannigan's comments and attention to my manuscript. His comment concerning human papillomavirus was correct. The "not" was a typographic error. The sentence from my article should have read "Human papillomavirus is now considered
July 1992 Am J Obstet Gynecol
to be a likely cause of cervical cancer, even though Koch's postulates have not been fulfilled." I recognize the insightful comments regarding definitions of "indefensible" and "defensible." In this study all the claims reviewed were open claims and not settled cases. Judgments were made without the benefit of the opinion of a jury; therefore the third category referred to by Brannigan could not have been used. In reviewing a claim, if the medical evidence or lack of same revealed a breach in the standard of care resulting in damage, then the claim was deemed indefensible and settlement was advised. However, if malpractice did not exist, I classified the case as defensible. In these latter claims I recommend that the case be defended, even if a defendant's summary judgment was not obtained. Charles J. Ward, MD 465 Winn Way, Suite 140, Decatur, GA 30030
Laparoscopic hysterectomy: Reinventing the wheel? To the Editors: Laparoscopic surgery is back on the scene. Ten years ago it might have been predicted that laparoscopy would be a dying procedure replaced by more advanced assisted reproductive technologies. However, the development of conventionaP and laser2,3 laparoscopic accessories and the incorporation of video imaging technologies' into the armamentarium of the endoscopic operating theater has made it possible to perform more radical procedures safely and to establish training programs for advanced laparoscopy. On the other hand, aggressive marketing of medical treatments coupled with public knowledge fed by eager journalism may be creating a misinterpretation of "new" applications such as "laparoscopic hysterectomy." At a recent international scientific event one of the keynote speakers stated " ... none of my patients accept any longer the idea of conventional hysterectomy." These types of comments subsequently become headlines in women's magazines, proclaiming "New way of removing your womb." The situ~tion is reminiscent of Hans Christian Andersen's famous story, "The Emperor's New Clothes." Is this procedure new? Or is it in fact a laparoscopyassisted vaginal hysterectomy or sometimes a laparoscopy-monitored vaginal hysterectomy? An experienced vaginal surgeon can perform a vaginal hysterectomy (with or without adnexectomy") in
test, and abnormal biophysical profile? The data also fail to indicate how often and under what circumstances an abnormal test result was ignored and the pregnancy allowed to continue for an extended period. The statement of Pircon et al. that antepartum testing in diabetic patients with hypertension should be started at viability is apparently based on the two late secondtrimester stillbirths that occurred during the study period. Pircon et al. acknowledge that both fetuses had true knots in the umbilical cords; these knots could have had a role in their deaths. Are there data demonstrating that diabetic patients with hypertension are at increased risk of umbilical cord knotting resulting in stillbirths? The question of when to begin fetal testing in patients with hypertension is extremely important. A retrospective analysis could be quite informative. We believe that the data presented by Pircon et al. should be reanalyzed, taking into account the number of tests performed at any given gestational age, with a more complete data presentation. Then justifiable conclusions could be drawn as to when antepartum testing should be initiated in the patient with hypertension. Avick C. Mitra, MD, and William N.? Herbert, MD Division of Maternal-Fetal Medicine, Department of Obstetrics and Gynecology, University of North Carolina School of Medicine, CB# 7570, Chapel Hill, NC 27599-7570
Reply To the Editors: We thank Mitra and Herbert for their interest in our study of antepartum testing in patients with hypertension. The answers to their questions can be found in the text of our original publication; however, we are happy to review the results again. Our objectives were to evaluate when fetal compromise occurs in this patient population and to make recommendations as to when to initiate antepartum testing. Contrary to the suggestion of Mitra and Herbert, the data were not analyzed as a percentage of abnormal antepartum tests per number of patients. We were not interested in the age-old issue of sensitivity or specificity of a testing method in patients with hypertension; rather, we were interested in when compromise occurs. We defined compromise by several parameters, one of which was a positive contraction stress test. Test results were recorded prospectively and were retrospectively queried by first positive test, not by the number of positive tests the patients had. In evaluating the data in this fashion we found that hypertensive patients with concomitant diagnoses of diabetes demonstrated compromise at an earlier gestational age when compared with hypertensive patients without diabetes. Subsequent management was not the topic of study. When patient management is modified because of an antepartum test, there is evidence of fetal compromise. To reiterate, we were interested in when this occurred. We all agree that follow-up of an abnormal test can be managed numerous ways. Although it seems that Mitra and Herbert have expressed an interest in our management protocol, that protocol would not affect our
Letters
295
results or our conclusions in this study. Consequently we do not believe it is appropriate to review that topic here. We recommended that testing in the diabetic patient with hypertension start at viability. As listed in our original publication, this was based on two observations. First, there were two patients with late second-trimester stillbirths and concomitant diagnoses of a true knot in the umbilical cord. It is difficult to attribute the losses solely to the knots in the cords because this is a common finding at the deliveries of normal, viable term infants. We did not suggest that there is an increased risk of cord knotting in diabetic patients with hypertension. Second, a clinician would prefer to initiate testing in a patient before fetal compromise. The earliest gestational age that intervention was necessary in the diabetic patient with hypertension was 28 weeks. Therefore testing would need to start at 26 to 27 weeks or near the time of viability. Richard Pircon, MD St. joseph's Medical Center, 5000 W. Chambers St., Milwaukee, WI 53210
Roger Freeman, MD Memorial Women's Hospital, 2801 Atlantic Ave., Long Beach, CA 90801
Legal thoughts on malpractice claims: Causes and prevention
To the Editors: As a professor of consumer law married to a physician, I read with great interest Ward's article (Ward CJ. Analysis of 500 obstetric and gynecologic malpractice claims: causes and prevention 1991; 165:298-306). I believe the article would have been improved and Kirkley'S comments muted by a change in the classification method. Ward divides the cases into "defensible" and "indefensible," and Kirkley has a number of problems with this categorization. So do I, but for a different reason. There is simply no division in the law which corresponds to the defensible-indefensible dichotomy. The law divides cases into three categories, not two. In the first the plaintiff has no case and the defendant wins on summary judgment. In the second the defendant has no case and the plaintiff wins on summary judgment. In the third the issue is presented to the jury for determination of the disputed facts. Given Ward's description of his method it would appear that most, though not all, of his indefensible cases fall into the second category, where the plaintiff might win on summary judgment. The defensible cases would be in the other two categories. However, even if a case can be made for a physician'S actions, it does not mean that the physician will win. Ward's article may give physicians the unwarranted belief that if they lose a "defensible" case, the system has somehow failed them presumably because of perjured expert testimony, idiot jurors, and corrupt lawyers. This is simply not the law, just as it is not the law that a bad outcome means that there was malpractice. The legal system recognizes that there are often factual disputes on which reasonable people can differ and
296
Letters
assigns the resolution of such disputes to juries. The burden of proof is only the preponderance of the evidence that the physician violated the appropriate standard of care. In a standard of preponderance of the evidence we accept that there will be a certain number of "incorrect" verdicts and that verdicts do not establish truth but only solve the operative question of who wins the case. This type of error is inherent in the legal system. Including this understanding in the method used in the research would make the conclusions of much greater practical use. I do not mean this comment to imply criticism of the obvious effort and skill Ward brought to this difficult issue and the real value of his advice to physicians (I assume the statement that human papilloma virus is "not" a likely cause of cervical cancer is a typographical error). However, I have a few replies to the comments of the other discussants. Kirkley confuses the "standard of care" required by the law with the practice patterns of the "20,000 to 30,000 members of the American College of Obstetricians and Gynecologists who actually establish the standard of care in their localities." The standard of care is not how the typical physician practices any more than it is how the typical driver drives. The typical driver is negligent some of the time. Good drivers and good physicians sometimes make mistakes, with terrible consequences. The standard of care is an abstract ideal, and it is possible for an entire profession or industry to fall below a standard of care at least some of the time. I am surprised that Kirkley's admonitions against changing medical records are seemingly based on the probability of being caught rather than the fact that changing records is a disgraceful, unethical act by anyone who claims to be a physician. I also question his statement that you "never tell a patient that you did wrong." Physicians owe patients a fiduciary duty to disclose errors. Failure to comply with this duty is itself actionable, and more practically may extend the statute of limitations under a theory of fraudulent concealment. As a professor I was appalled that Blanchard would try to use a department chair to "take a stand" against an expert testifying in litigation. Virtually all states have civil or criminal penalties for those who tamper with witnesses in civil litigation, and any decent university respects the academic freedom of its professors. Ward's article is a useful addition to the medical-legal literature. I only add that the real goal is not to avoid liability, but to avoid the i~ury that leads to the claim of liability. Vincent Brannigan University of Maryland, College Park, MD 20742
Reply To the Editors: I appreciate Brannigan's comments and attention to my manuscript. His comment concerning human papillomavirus was correct. The "not" was a typographic error. The sentence from my article should have read "Human papillomavirus is now considered
July 1992 Am J Obstet Gynecol
to be a likely cause of cervical cancer, even though Koch's postulates have not been fulfilled." I recognize the insightful comments regarding definitions of "indefensible" and "defensible." In this study all the claims reviewed were open claims and not settled cases. Judgments were made without the benefit of the opinion of a jury; therefore the third category referred to by Brannigan could not have been used. In reviewing a claim, if the medical evidence or lack of same revealed a breach in the standard of care resulting in damage, then the claim was deemed indefensible and settlement was advised. However, if malpractice did not exist, I classified the case as defensible. In these latter claims I recommend that the case be defended, even if a defendant's summary judgment was not obtained. Charles J. Ward, MD 465 Winn Way, Suite 140, Decatur, GA 30030
Laparoscopic hysterectomy: Reinventing the wheel? To the Editors: Laparoscopic surgery is back on the scene. Ten years ago it might have been predicted that laparoscopy would be a dying procedure replaced by more advanced assisted reproductive technologies. However, the development of conventionaP and laser2,3 laparoscopic accessories and the incorporation of video imaging technologies' into the armamentarium of the endoscopic operating theater has made it possible to perform more radical procedures safely and to establish training programs for advanced laparoscopy. On the other hand, aggressive marketing of medical treatments coupled with public knowledge fed by eager journalism may be creating a misinterpretation of "new" applications such as "laparoscopic hysterectomy." At a recent international scientific event one of the keynote speakers stated " ... none of my patients accept any longer the idea of conventional hysterectomy." These types of comments subsequently become headlines in women's magazines, proclaiming "New way of removing your womb." The situ~tion is reminiscent of Hans Christian Andersen's famous story, "The Emperor's New Clothes." Is this procedure new? Or is it in fact a laparoscopyassisted vaginal hysterectomy or sometimes a laparoscopy-monitored vaginal hysterectomy? An experienced vaginal surgeon can perform a vaginal hysterectomy (with or without adnexectomy") in
